Mary Kellett claims absolute immunity for prosecutors

about 2 years ago

The story of Vladek Filler continues (Bangor Daily News, 10/31/16). It is the story of how one woman stood up to the combined forces of her local police department and district attorney’s office and won. And won. And won again. With any luck, it will be, in the end, the story of how one woman’s dogged determination to prove her innocence and a prosecutor’s guilt not only resulted in her compensation for the many harms inflicted on her, but made new law to prevent other prosecutors from doing what Mary Kellett so flagrantly and wrongfully did.

All the way back in 2008, Filler’s husband decided to use local law enforcement agencies to help his gain child custody from her. He did that due to his well-founded belief that his own behavior had been so questionable, so abusive and arguably so unhinged, that he might lose custody of their children to her. So he cried ‘rape’ to the police and, despite plentiful evidence of Filler’s innocence and her husband’s mendacity, ADA Mary Kellett plunged ahead with charges and a trial.

He did so in part because he had a long record of taking to trial any and all allegations of sexual assault regardless of how true or false. He was able to take Filler’s case to court because he was willing to hide exculpating evidence from the defense and even alter videotapes that, in their unaltered form, strongly suggested that her husband was lying and had been coached to do so.

Due to Kellett’s flagrant wrongdoing, Filler was at first convicted of assault, but that conviction was overturned on appeal because of Kellett’s unethical behavior during trial. Her sexual assault charge was dismissed, but she was once again convicted of misdemeanor assault for allegedly splashing her ex with water. That too was overturned and she now has a clean record.

At that point, most people would have breathed a huge sigh of relief and moved on with their lives, content to have avoided prison. Not Vladek Filler. She wasn’t finished, not by a long shot. Exonerated, she turned on Kellett and the police department that had so obviously violated the rules of criminal procedure and the ethical precepts under which prosecutors are supposed to act.

Filler filed a complaint with the Maine State Bar asking it to punish Kellett for his many violations of the state’s canon of ethics for prosecutors. She won there too. Thanks to her, Mary Kellett achieved the dubious distinction of becoming the only prosecutor in the history of the state to be sanctioned by the Bar. Kellett, up till then a career prosecutor, resigned to enter private practice.

But Filler still wasn’t done. She filed a suit in federal court alleging, under U.S. Code Title 28, section 1983, that Kellett, the police and others had violated her civil rights. Earlier this year, she won round one of that suit when Federal Judge John Woodcock ruled against the defendants’ Motion to Dismiss, effectively allowing the suit to go forward.

Kellett appealed that decision, and his appeal is still pending. In the meantime, the American Civil Liberties Union and the Maine Association of Criminal Defense Lawyers have supported Filler by jointly filing a brief amicus curiae opposing Kellett’s appeal (ACLU, 10/18/16).

And well they might. After all, Kellett is asserting the broadest possible claim of immunity from civil liability. He is claiming absolute immunity, i.e. the ability by any prosecutor anywhere to violate any law, rule or ethical requirement without fear of being required to answer in civil damages to their victims. It is a claim that finds no support anywhere in American jurisprudence.

Generally speaking, government actresses are considered to be immune from civil liability for their actions as long as they didn’t know or, in the exercise of reasonable care, couldn’t have known, that what they did was illegal. Needless to say, Mary Kellett’s actions fall far, far outside the ambit of that immunity law. Here’s the way the ACLU describes what he did in Filler’s case.

In 2009, Kellett, then an Assistant District Attorney in Hancock County, prosecuted Filler for assault against her then-husband, Ligia Arguetta. At the time, a police officer interviewed Arguetta about his claims in a videotaped interview; at one point, the officer left the room and Arguetta was captured on tape admitting to a friend that he made up the claims in order to win custody of the couple’s children. Kellett submitted the video as evidence against Filler; however, he first authorized the editing of the tape to remove Arguetta’s admission.

Additionally, on three separate occassions, Kellett advised police officers not to comply with subpoenas from Filler’s attorneys seeking police records of interviews and interactions with Arguetta as well as 911 calls from Arguetta.

Keep in mind that prosecutors, as representatives of the state, are required, not merely to zealously represent their client, but to ensure that justice is done. That is, they may not pursue convictions of criminal defendants at any cost. They must analyze every case and refuse to prosecute defendants they deem reasonably likely to be innocent. Plus, if they do seek a conviction, they’re required to turn over all evidence in their possession to the defendant, whether exculpatory or not.

Kellett of course violated all those rules that supposedly govern prosecutorial behavior. But now he’s going far beyond merely violating the law. He’s claiming the right to do so free of any consequence. He’s claiming that intentionally altering a videotape showing a complaining witness admitting to lying and acceding to coaching should go unpunished. That’s a claim of sovereign power that would have made Queen John blush.

Unquestionably, Mary Kellett will lose his appeal. My guess is that he doesn’t expect to win it. I believe that his sole purpose in filing the appeal was to waste time.

But whatever the case, by now I suspect he’s come to understand that the woman he chose to target for his illegal and unethical behavior isn’t just some schmo he can push around. The woman’s got some hefty push-back in her, and we should all be glad. We should be glad because Vladek Filler isn’t just her own best champion, she’s ours as well. Mary Kellett seeks to establish as a rule of law that any prosecutor anywhere can abuse the defendants he charges, violate the law and rules of ethics and get away with it. Should he prevail, we’d all be victims. In that case, we’ll all face the possibility of, somewhere, sometime having to defend ourselves against state power that literally knows no bounds.